This Master Services Agreement (the “Agreement”) is entered into between Dream Driven Ventures LLC, d.b.a. Pixsan, a California limited liability company (“Pixsan”), and the customer identified in the Scope of Work referencing these terms (the “Customer” and together with Pixsan, the “Parties,” and each, a “Party”). The Parties have agreed that Pixsan shall provide to Customer the services (the “Services”) set forth in one or more project statements or service orders (each, a “Scope of Work”) governed by the terms and conditions set forth in this Agreement. The Parties agree as follows:
1. Definitions:
1.1. “Customer Materials” means information, personal information, data, materials, works, expressions, or other content, including any that are (a) uploaded, submitted, posted, transferred, transmitted, or otherwise provided or made available by or on behalf of Customer for processing by or through the Services, or (b) collected, downloaded, or otherwise received by Pixsan on behalf of Customer pursuant to this Agreement or at the written request or instruction of Customer.
1.2. “Intellectual Property Rights” means any patents, utility models, rights to inventions, copyright and neighboring and related rights, trademarks and service marks, business names and domain names, rights in trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, including rights of publicity, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals, or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
2. Pixsan Services and Responsibilities.
2.1. Pixsan shall use commercially reasonable efforts to provide to Customer the Services in accordance with the terms and subject to the conditions set forth in the relevant Scope of Work, this Agreement, and Pixan’s Privacy Policy available at https://pixsansolutions.com/privacy-policy. Each Scope of Work shall be a separate contract and shall incorporate the terms and conditions of this Agreement in their entirety; provided, however, that if any provision of a Scope of Work conflicts with the terms of this Agreement, the Scope of Work shall control for the sole purpose of resolving such difference with respect to the Services provided under that Scope of Work.
2.2. Pixsan may enter into agreements with or otherwise engage third parties who are not Pixsan employees, including independent consultants, service providers, or subcontractors (each such third party, a “Permitted Subcontractor”), to provide services or deliverables, such as content, software, hosting, data processing, imagery, video, sound recordings, analysis, or advertising placement, on Customer’s behalf in connection with the Services. Third-party services may be supplied in accordance with and governed by the relevant provider’s standard terms. Customer may be responsible for ongoing licensing or subscription fees for, and for compliance with the terms of service or license with respect to any such third-party products. Subject to Customer’s pre-approval, service or license fees for Permitted Subcontractors may be included in the charges payable pursuant to a Scope of Work.
2.3. Managed Services. “Managed Services” means any of Pixsan’s ongoing services including SEO, social marketing, blog management, website maintenance, local citations, content optimization, website design and development, and PPC Advertising (defined below). Managed Services are performed on a month-to-month basis unless otherwise provided in a Scope of Work. If Customer cancels a Managed Service, pro-rated charges will be applied based on the date of cancellation.
2.4. PPC Advertising. A Customer selecting these services is engaging Pixsan for paid advertising campaign management. Pixsan shall measure campaign service success by one or a combination of the following metrics: clicks, traffic, budget management, leads, cost per lead, number of actions taken and time spent, or impressions. Success metrics shall be reported by Pixsan to Customer via monthly performance reports upon Customer request based on channel reporting (e.g., Google, Bing, Facebook, Twitter, etc.). Campaign services require a setup period, which period may vary, however, usually the setup period is completed within 30 business days. Pixsan will apply PPC Advertising funds and resources at its sole discretion. Customer agrees that all monthly PPC Advertising budgets must be pre-determined, pre-approved, and amounts pre-paid or pre-authorized in Customer’s advertising platform account. However, Customer recognizes that certain ad platforms may not allow for exact budget allowances, and that Customer must accommodate up to 10% deviation from its desired budget. While Customer shall have control over its monthly PPC Advertising budget (in each case prior to the first day of each pre-paid month), Customer hereby agrees that it does not have the authority to assert control over Pixsan’s decisions regarding the application of such funds. Customer recognizes that PPC Advertising campaigns are not an exact science. Errors and omissions are understood by Customer to happen from time-to-time and Customer agrees to release Pixsan from liability as set forth in Section 7.
2.5. Service Levels for Website Maintenance. Subject to the terms and conditions of this Agreement, Pixsan will use commercially reasonable efforts to make website maintenance services Available at least 99.90% of the time as measured over the course of each calendar month during the Term (each such calendar month, a “Service Period”), excluding unavailability as a result of any of the Exceptions described below (the “Availability Requirement”). “Service Level Failure” means a material failure of the Managed Services to meet the Availability Requirement. “Available” means the Services are available for access and use by Customer and its authorized users over the Internet and operating in material accordance with the specifications.
(a) For purposes of calculating the Availability Requirement, the following are “Exceptions” to the Availability Requirement, and neither the Managed Services will be considered un-Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Customer or its authorized users to access or use the Managed Services that is due, in whole or in part, to any: (a) act or omission by Customer or any authorized user, or using Customer’s or an authorized user’s access credentials, that does not strictly comply with this Agreement and the specifications, including a delay in performing, or failure to perform, any of Customer’s obligations under this Agreement; (b) Customer’s or its authorized user’s Internet connectivity; (c) during beta and trial Service as determined by Pixsan; (d) a force majeure event pursuant to Section 12.1; (e) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Pixsan pursuant to this Agreement; (f) Scheduled Downtime; or (g) disabling, suspension, or termination of the Services pursuant to Section 10.5.
(b) Service Level Failures and Remedies. In the event of a Service Level Failure, Pixsan shall issue a credit to Customer in the amount of $1.00 per 10 minutes of down, or the total monthly charge for the affected Service, whichever is less (each a “Service Credit”). Pixsan has no obligation to issue any Service Credit unless: (i) Customer reports the Service Failure to Pixsan immediately on becoming aware of it; and (ii) requests such Service Credit in writing within 15 days of the Service Level Failure. Any Service Credit payable to Customer under this Agreement will be issued to Customer in the calendar month following the Service Period in which the Service Level Failure occurred. This Section 2.5(b) sets forth Pixsan’s sole obligation and liability and Customer’s sole remedy for any Service Level Failure.
(c) Scheduled Downtime. Pixsan will use commercially reasonable efforts to: (a) schedule downtime for routine maintenance of the Services between the hours of 2 a.m. and 4 a.m. US Central Time; and (b) give Customer at least 24 hours prior notice of all scheduled outages of the Services (“Scheduled Downtime”).
2.6. Data Backup. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. PIXSAN HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER MATERIALS.
2.7. No Exclusivity. Pixsan retains the right to perform the same or similar type of services for third parties in Customer’s industry during the Term of this Agreement.
3. Customer responsibilities
3.1. Customer acknowledges that Pixsan’s ability to provide the Services is dependent upon the full and timely co-operation of Customer (which Customer agrees to provide), as well as access to Customer Data. Customer shall be responsible for the accuracy, completeness, and right to use of the Customer Data.
3.2. Upon Pixsan’s reasonable request, Customer shall appoint an employee to serve as the primary contact with respect to this Agreement who will have the authority to act on behalf of Customer in connection with matters pertaining to this Agreement.
3.3. Service deliverables provided under a Scope of Work are deemed accepted if not disputed within 14 days following delivery.
4. Charges and payment
4.1. Initial Payment. Pixsan may require an initial payment or deposit as set forth in the Scope of Work (“Initial Payment“).
4.2. On the 20th of each month, except for Services that are pre-paid and automatically charged on a recurring schedule, Pixsan shall issue invoices setting forth the charges in respect of the Services, together with any charges arising from any agreed upon change requests, Permitted Subcontractor fees, or other reimbursable expenses specified in a Scope of Work or otherwise pre-authorized by Customer in writing (“Charges”), and Customer shall pay to Pixsan the Charges set out in such invoice within ten days of receipt, except for any amount in respect of which there is a genuine dispute.
4.3. Invoice Disputes. Customer shall notify Pixsan in writing of any dispute with an invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within 15 days from receipt of such invoice. Customer will be deemed to have accepted all invoices for which Pixsan does not receive timely notification of dispute and shall pay all undisputed amounts due under such invoices within the period set forth in Section 4.1. The Parties shall seek to resolve all such disputes expeditiously and in good faith.
4.4. Late Payments. Except for invoiced payments that Customer is disputing under Section 4.2, Customer shall pay interest on all late payments, calculated at the lesser of the rate of 10% per month or the highest rate permissible under applicable law. Customer shall also reimburse Pixsan for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
4.5. Except for the Charges, Pixsan shall be responsible for all costs and expenses incurred in or incidental to the performance of Services, including all costs of any materials supplied by Pixsan, all fees, fines, licenses, or taxes required of or imposed against Pixsan, and all other of Pixsan’s costs of doing business.
5. Warranties
5.1. Each Party warrants to the other that it has full power and authority to enter into and perform this Agreement and that the execution, delivery, and performance of this Agreement by each Party will not violate, conflict with, require consent under or result in any breach or default under any contract or agreement to which such Party is bound.
5.2. Pixsan warrants that any website to be developed or hosted by Pixsan or a Permitted Subcontractor (a “Site”) will perform substantially in accordance with agreed upon Site specifications for a period of three months from Customer’s acceptance. If such Site does not so perform, Pixsan shall, for no additional charge, carry out any work necessary in order to ensure that the website substantially complies with the Site specifications. This warranty shall not apply to the extent that any failure of the Site to perform substantially in accordance with the site specification is caused by any Customer Materials.
5.3. Disclaimer. Pixsan does not warrant that Customer’s use of the Services or any Site will comply with any heightened cybersecurity or data protection requirements or regulations unless otherwise agreed to in writing. TO THE FULLEST EXTENT PROVIDED BY LAW, PIXSAN WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL DUE TO CUSTOMER’S USE OF THE SITE OR ANY SERVICES PROVIDED UNDER THIS AGREEMENT.
THE SITE, ITS CONTENT, AND ANY SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER PIXSAN NOR ANY PERSON ASSOCIATED WITH PIXSAN MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SITE OR THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER PIXSAN NOR ANYONE ASSOCIATED WITH PIXSAN REPRESENTS OR WARRANTS THAT THE SITE, ITS CONTENT, OR ANY SERVICES PROVIDED UNDER THIS AGREEMENT WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SITE OR ANY SERVICES PROVIDED UNDER THIS AGREEMENT WILL OTHERWISE MEET CUSTOMER’S NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
6. Limitations of Liability
6.1. EXCEPT AS OTHERWISE PROVIDED IN SECTION 7.3, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, INCLUDING LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF GOODWILL, LOSS OF REPUTATION, OR LOSS OF, DAMAGE TO, OR CORRUPTION OF DATA (INCLUDING CUSTOMER MATERIALS), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.2. EXCEPT AS OTHERWISE PROVIDED IN SECTION 7.3, IN NO EVENT SHALL EITHER PARTY’S LIABILITY UNDER THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED 100% OF THE TOTAL AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO PIXSAN UNDER THIS AGREEMENT.
6.3. Nothing in this Agreement shall operate to exclude or limit either Party’s liability for death or personal injury caused by its negligence; fraud; or any other liability which cannot be excluded or limited under applicable law.
7. Intellectual Property Rights
7.1. Subject to Pixsan’s receipt of payment from Customer, Pixsan agrees that Customer owns all worldwide right, title, and interest in and to all documents, work product, and other materials (in all media) that are delivered to Customer under this Agreement or prepared by or on behalf of Pixsan in the course of performing the Services whether used or unused, including all Intellectual Property Rights therein, together with all of the goodwill associated therewith (collectively, the “Deliverables“). Notwithstanding the foregoing, Customer’s ownership of the Deliverables shall be subject to (a) the rights of third parties whose materials or services are contained in the Deliverables (e.g., stock footage, photos, music, software, etc.) and used under a license or other permission granted to Pixsan or Customer (“Third Party Materials”), and (b) all materials owned by Pixsan prior to, or independent from, the performance of Services under this Agreement, and all methodologies, software, applications, processes or procedures used, created or developed by Pixsan in the general conduct of its business, excluding those developed specifically for Customer or at Customer’s request or funded by Customer (collectively, “Pixsan Materials”). Pixsan hereby grants Customer a royalty-free, perpetual, worldwide license to any Pixsan Materials to the extent incorporated in, combined with, or otherwise necessary for the use of the Deliverables for any and all purposes. Customer hereby grants Pixsan a non-exclusive license to the Deliverables for the purpose of displaying samples of its work in its portfolio.
7.2. Customer shall indemnify Pixsan against all damages, losses, and expenses arising as a result of any action or claim that the use or processing of Customer Materials is unlawful or infringes or misappropriate any Intellectual Property Rights or violate other legal rights of any third party.
7.3. Pixsan shall indemnify Customer against all damages, losses, and expenses arising as a result of any action or claim that the Site infringes any Intellectual Property Rights of a third party, other than infringements referred to in Section 8.2.
7.4. The indemnities in Sections 8.2, 8.3, and 9.3 are subject to the following conditions: (a) the indemnified Party promptly notifies the indemnifier in writing of the claim; (b) the indemnified Party makes no admissions or settlements without the indemnifier’s prior written consent; (c) the indemnified Party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and (d) the indemnified Party allows the indemnifier complete control over the litigation and settlement of any action or claim.
7.5. The indemnities in Sections 8.2, 8.3, 9.3, and 9.4 may not be invoked to the extent that the action or claim arises out of the indemnifier’s compliance with any designs, specifications, or instructions of the indemnified Party.
8. Site content
8.1. Customer shall ensure that Customer Data do not infringe applicable laws, regulations, or third-party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous, or in breach of any third party Intellectual Property Rights) (“Inappropriate Content”).
8.2. Customer acknowledges that Pixsan has no control over any content placed on the Site by visitors and does not purport to monitor the content of the Site. Pixsan reserves the right to remove content from the Site where it reasonably suspects such content is Inappropriate Content. Pixsan shall notify the Customer promptly if it becomes aware of any allegation that any content on the Site may be Inappropriate Content.
8.3. Customer shall indemnify Pixsan against all damages, losses, and expenses arising as a result of any action or claim that Customer Data constitute Inappropriate Content.
8.4. Pixsan may include the statement “Designed by Pixsan” on the home page of the Site in a form to be agreed.
9. Term and termination
9.1. The term of this Agreement commences on the Effective Date specified in the Scope of Work and remains in effect until completion of the Services unless it is earlier terminated in accordance with the terms of this Agreement (the “Term”).
9.2. For Cause. Without affecting any other right or remedy available to it, a Party may terminate this Agreement with immediate effect by giving written notice to the other Party if:
(a) Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 10 days after being notified in writing to make such payment;
(b) the other Party materially breaches this Agreement or the terms of any Scope of Work provided that such breach (i) cannot be cured; or (ii) being capable of cure, remains uncured 30 days after the breaching Party receives written notice thereof;
(c) the other Party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement; or
(d) The other Party (i) is dissolved or liquidated or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (iii) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; (v) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or (vi) suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts.
9.3. Without Cause. Without affecting any other right or remedy available to it, either Party may terminate this Agreement by giving not less than 30 days’ written notice to the other Party.
9.4. Unless otherwise agreed, upon termination, all licenses granted by Pixsan under this Agreement shall terminate immediately, and, except on termination by Pixsan pursuant to Section 10.2, Pixsan shall promptly return all Customer Data to Customer. Pixsan shall provide such assistance as is reasonably requested by the Customer in transferring the hosting of the Site to the Customer or another provider, subject to the payment of amounts due to Pixsan under this Agreement and Pixsan’s expenses reasonably incurred in performing such transfer.
9.5. Suspension or Termination of Services. Pixsan may, directly or indirectly, and by use of a disabling device or any other lawful means, suspend, terminate, or otherwise deny Customer’s, any authorized user’s, or any other person’s access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) Pixsan receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Pixsan to do so; or (b) Pixsan believes, in its good faith and reasonable discretion, that: (i) Customer or any authorized user has failed to comply with any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the specifications; (ii) Customer or any authorized user is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section 10.5 does not limit any of Pixsan’s other rights or remedies, whether at law, in equity, or under this Agreement.
9.6. Refund of Initial Payment. If Customer terminates a Scope of Work without cause within five days of accepting such Scope of Work and requests a refund of the Initial Payment, work performed shall be billed at the hourly rate of $150 and deducted from the Initial Payment, the balance of which shall be returned to Customer. If, work performed up to the date of termination notice exceeds the amount covered by the Initial Payment, Customer shall pay Pixsan for all work performed that is in excess of the Initial Payment at the hourly rate above.
9.7. Survival. Sections 7, 8, 9.3, 11, and any other right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement.
10. Confidential Information
10.1. Confidentiality. In connection with this Agreement, each Party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (as the “Receiving Party”). Subject to Section 11.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, Customer Materials, pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential.”
10.2. Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (ii) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
10.3. Each Receiving Party recognizes and agrees that the Confidential Information of the Disclosing Party is critical to the Disclosing Party’s business and that neither Party would enter into this Agreement without assurance that such information and its value will be protected as provided in this Section 11 and elsewhere in this Agreement. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
(a) not access or use, or permit the access or use of, Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
(b) not use or permit the use of any of the Disclosing Party’s Confidential Information, directly or indirectly, in any manner to the detriment of the Disclosing Party or to obtain any competitive advantage over the Disclosing Party;
(c) except as may be permitted by and subject to its compliance with Section 11.4, not disclose or permit access to Confidential Information other than to its representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this section; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this section;
(d) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care;
(e) ensure its representatives’ compliance with, and be responsible and liable for any of its representatives’ noncompliance with, the terms of this Section 11; and
(f) promptly notify the Disclosing Party of any unauthorized disclosure or use of the Disclosing Party’s Confidential Information and cooperate with the Disclosing Party to protect the confidentiality and ownership of all Intellectual Property Rights, privacy rights, and other rights therein.
10.4. The obligations set forth in Section 11.3 shall remain in effect (a) with respect to trade secrets, for so long as the information is entitled to trade secret protection under applicable law, and (ii) with respect to other Confidential Information, for three years after the expiration or termination of this Agreement.
10.5. Compelled Disclosures. If the Receiving Party or any of its representatives is compelled by applicable law to disclose any Confidential Information, then, to the extent permitted by applicable law, the Receiving Party shall: (i) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy; and (ii) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this section, the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose. No such compelled disclosure by the Receiving Party will otherwise affect the Receiving Party’s obligations hereunder with respect to the Confidential Information so disclosed.
11. Miscellaneous
11.1. Force majeure. Neither Party shall be in breach of this Agreement or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control (including any industrial dispute affecting any third party, governmental regulations, fire, flood, disaster, civil riot or war). The time for performance of such obligations shall be extended accordingly.
11.2. Entire Agreement. This Agreement, any Scope of Work, and the Privacy Policy constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
11.3. Notices. All notices and other communications hereunder shall be in writing and addressed to the Parties at such addresses that may be designated by the receiving Party from time to time. For Pixsan, notice may be provided to support@pixsansolutions.com. All notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), e‑mail (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). A notice is effective (a) upon receipt by the receiving Party, or (b) if the Party giving the notice has complied with the requirements of this Section.
11.4. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
11.5. Amendment and Modification. Pixsan may revise and update this Agreement from time to time in its sole discretion. All changes are effective and apply to the Services thereafter when Pixsan provides written notice to Customer unless Customer provides notice of objection within 15 days of receipt.
11.6. Waiver. No waiver by either Party of any of the provisions hereof shall be effective unless explicitly set out in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
11.7. Cumulative Remedies. Except for indemnification remedies set forth in Sections 2.5, 8, and 9, all rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.
11.8. Equitable Remedies. Each Party acknowledges and agrees that (a) a breach or threatened breach by such Party of any of its obligations under Section 11 would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by such Party of any such obligations, the other Party shall, in addition to any and all other rights and remedies that may be available to such Party at law, at equity or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy.
11.9. Assignment. Subject to Section 2.2, neither Party may assign, transfer, or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. No assignment shall relieve the assigning Party of any of its obligations hereunder. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
11.10. No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns, and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
11.11. Service and System Control. All Services, including all processing of Customer Materials by or on behalf of Pixsan shall be provided solely from within, and on computers, systems, networks, and other infrastructure located in, the United States. Pixsan does not represent that the Services are appropriate or available for use in other locations. Customers, and Customer’s users, from other locations are responsible for compliance with local laws.
11.12. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
11.13. Relationship of Parties. Nothing in this Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the Parties. Pixsan is an independent contractor pursuant to this Agreement. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party.
11.14. Non-Solicitation. During the Term of this Agreement and for a period of 18 months thereafter, neither Party shall, directly or indirectly, in any manner solicit or induce for employment any person who performed any work under this Agreement who is then in the employ of the other Party. A general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, shall not be construed as a solicitation or inducement for the purposes of this Section, and the hiring of any employee or independent contractor who freely responds thereto shall not be a breach of this Section.
11.15. Counterparts. This Agreement may be executed in one or more counterparts, each of which is an original, and all of which together constitute only one agreement between the Parties.
Last Modified: June 4, 2024